DUI Laws

I. MISDEMEANOR OWI

A. “.08″ & “INTOXICATED” WITH “VEHICLES”

There are now four (4) misdemeanor offenses in Indiana with respect to adults consuming alcohol (or having certain controlled substances in their body without a valid prescription) and operating an automobile. These four (4) basic offenses will be referred to herein as “Operating While Intoxicated Type Offenses.”

1. Two (2) “Per Se” Offenses

a. Class “C” Misdemeanor “Per Se”

The first of the two (2) “Per Se” type misdemeanor offenses is concerned with both theamount of alcohol in a person’s breath or blood and certain controlled substances in the body. IC 9-30-5-1(a) prohibits the operation of a vehicle with at least .08 but less than .15 grams of alcohol by weight in your blood or breath, and operating with certain controlled substances in your body. Both offenses are charged as Class “C” Misdemeanors.

A Class “C” Misdemeanor is punishable by a maximum term of imprisonment of sixty (60) days, a fine of up to Five Hundred Dollars ($500.00), or both. (IC 35-50-3-4)

b. Class “A” Misdemeanor “Per Se”

The second “Per Se” offense is only concerned with the amount of alcohol a person has consumed. IC 9-30-5-1(b) prohibits the operation of a vehicle with .15 or above grams of alcohol by weight in your blood or breath. This offense is charged as a Class “A” Misdemeanor.

A Class “A” Misdemeanor is punishable by a maximum term of imprisonment of three hundred sixty-five (365) days, a fine of up to Five Hundred Dollars ($500.00), or both. (IC 35-50-3-4)

2. Two (2) Operating While “Intoxicated” Offenses

a. Class “C” Misdemeanor “Intoxicated”

The second two (2) statutes, (IC 9-30-5-2), prohibit the operation of a vehicle whileintoxicated. ”Intoxicated” is defined as under the influence of alcohol, a controlled substance, a drug other than alcohol or a controlled substance, or a combination of these, so that there is an impaired condition of thought and action and the loss of normal control of your faculties. (IC 9-13-2-86)

A person who operates a vehicle while “Intoxicated” commits a Class “C” Misdemeanor. [(IC 9-30-5-2(a)]

b. Class “A” Misdemeanor “Intoxicated”

If it is proven that a person operated a vehicle while intoxicated, and in doing so additionally endangered someone, it is a Class “A” Misdemeanor. [IC 9-30-5-2(b)]

II. FELONY OWI

A. Previous Conviction Within 5 Years

(IC 9-30-5-3)

If within five (5) years of the present arrest a person has a previous conviction for an “Operating While Intoxicated Type Offense,” the new offense will be elevated to a Level 6 Felony.

A level 6 Felony carries a punishment of six (6) months to two and one-half (2.5) years imprisonment. The advisory sentence is one and one (1 ) year. Additionally, the person may be fined up to Ten Thousand Dollars ($l0,000.00. (IC 35-50-2-7)

An “advisory sentence” is a guideline that the court may voluntarily consider as the midpoint between the maximum and minimum sentence.

Additionally, the Court must order the convicted person to serve at least five (5) days imprisonment if they have one previous conviction and ten (10) days imprisonment if they have two (2) or more convictions (without good time credit). (IC 9-30-5-15)

B. Minors in Vehicle

(IC 9-30-5-3)

If the driver of the vehicle is at least 21 years old, with any passenger under 18, and the driver has either 1) a Blood Alcohol Content of .15 or greater, or 2) operates a vehicle while intoxicated, in a manner that endangers a person. The charge is a Level 6 Felony.

A level 6 Felony carries a punishment of six (6) months to two and one-half (2.5) years imprisonment. The advisory sentence is one and one (1 ) year. Additionally, the person may be fined up to Ten Thousand Dollars ($l0,000.00. (IC 35-50-2-7)

An “advisory sentence” is a guideline that the court may voluntarily consider as the midpoint between the maximum and minimum sentence.

C. Serious Bodily Injury

(IC 9-30-5-4)

Any “Operating While Intoxicated Type Offense” may be elevated and charged as a Level 6 felony if “serious bodily injury” is inflicted on another person. [IC 9-39-5-4(a)].

C. Death

Any “Operating While Intoxicated Type Offense” may be elevated and charged as a felony if death is inflicted on another person. The level felony can depend on the blood aclohol concentration and other circumstances.

III. MANDATORY JAIL SENTENCES

A. Misdemeanor with a Prior “OWI type” Conviction

Please note that, even if the present charge is a misdemeanor, if the person has one previous conviction for an “OWI type offense”, the judge must sentence him to at least 5 days in jail without“good time credit.” The judge does have the option of allowing the person to perform 180 hours of community service in lieu of the executed jail sentence. (IC 9-30-5-15 (a))

If the person has two (2) OR MORE prior “OWI type convictions,” there is a mandatory jail sentence of ten (10) days without “good time credit.” The judge has the option of ordering the person must perform 360 hours of community service in lieu of the executed jail sentence. (IC 9-30-5-15(b))

IV. ADMINISTRATIVE SUSPENSION OF DRIVING PRIVILEGES

A. Suspension for Failing “Chemical Test”

Whenever a law enforcement officer in the State of Indiana has probable cause to believe that a person has committed an “Operating While Intoxicated Type Offense,” the officer will offer the driver a chemical test(s) to determine that person’s blood and/or breath alcohol level. The test(s) may be of the blood, breath, urine, or all three (3). (IC 9-30-6-2) If the results of a chemical test show a blood alcohol concentration of .08 or more, that person will be arrested. Further, the Indiana Bureau of Motor Vehicles (“BMV”) will be notified of the test failure. At your first court hearing, (called an “Initial Hearing”), the Judge should suspend his driving privileges immediately for one hundred eighty (180) days in open court if he failed any of the chemical test(s). If for some reason the Judge doesn’t immediately suspend the driving privileges, but the judge finds probable cause to believe that the driver failed a “chemical test,” paperwork will be sent to the BMV advising it of this. Once the BMV receives this information, the BMV will send notice to the driver at his last known address, advising him that his driving privileges are suspended. This suspension (whether by the Judge or the BMV) is called an “administrative suspension.” This suspension will last for one hundred eighty (l80) days or until the case is disposed of by the Court, whichever occurs first. [IC 9-30-6-9(b)]